As Virginia’s long-term care ombudsman, patient advocate at senior living centers, Joani Latimer has witnessed what happens when residents of assisted living facilities are forced to leave.
In some cases, patients ended up in homeless shelters. Latimer still remembers a resident who was sent back to his local emergency room with a “will not readmit” note pinned to his shirt. In another recent case, a man with partial memory loss was kicked out of an establishment after it was sold to a new owner. As a COVID-19 mitigation measure, the company has implemented a new policy prohibiting residents from leaving the property. But the patient, who regularly volunteers for community recycling, has forgotten the rule.
“So he was going to be kicked out for that reason, because of the zero tolerance policy,” she told lawmakers at a House committee meeting earlier this month. “These types of things aren’t allowed by our regulations, but they sometimes happen when facilities don’t follow the proper process.
Under current Virginia law, however, there is no recourse for residents who are evicted from assisted living facilities, even if it violates state regulations. It’s a loophole that advocates and lawmakers hope to close this session. Currently, the extension of these protections is based on legislation of Sen. Lionell Spruill, D-Chesapeake, which would create an appeals process for residents and their families.
Emily Hardy, an elderly attorney at the Virginia Poverty Law Center, described it as a vital step in restoring due process to an often opaque system. Nursing homes, most of which accept state Medicaid funding, are already subject to an appeal procedure through the Department of Medical Assistance Services, which can cancel leaves if a hearing officer finds that a resident has been improperly discharged.
Assisted living facilities do not have the same protections. from Virginia Landlords and Tenants Actwho states specific rights and restrictions in matters of eviction, specifically excludes geriatric residences. And while improperly discharged residents can file a complaint with the state Department of Human Services, the agency cannot require facilities to readmit them.
“The permit can say, ‘Yeah, that was an unauthorized reason, you shouldn’t have fired them,'” Hardy told lawmakers. “But he doesn’t have that hearing process or any way to enforce that decision.”
The lack of protection is of particular concern to defenders given the vulnerability of many assisted living residents. Virginia has much stricter criteria to admit patients to nursing homes than many other states. This often leaves assisted living facilities as the only recourse for residents who cannot live independently but do not meet the threshold for nursing home care.
“They’re basically half a step below nursing homes, at most, when it comes to people with the highest care demands,” Hardy said. And according to Latimer, exits are most disruptive for low-income residents who often cannot afford alternative placements, as well as residents with medical or behavioral issues that may make them a target for withdrawal. .
“You think of people with dementia, who are a large part of the consumer population seeking care in an assisted living facility,” she said. “These people are often the ones going through holidays and upheavals, and it is particularly traumatic for them to change their environment. It’s upsetting everyone in their world, and that’s the last thing they need to lose that familiar environment and the staff that they know and the community of residents that they know.
It’s still unclear how often assisted living facilities incorrectly dismiss Virginia residents. The state ombudsman program has registered 63 eviction complaints over the past two fiscal years, but the Department of Human Services does not track the number of discharges, according to the impact statement for Spruill’s bill. Latimer suspects these complaints are just the tip of the iceberg given the lack of regulatory protections and the fact that many residents — and their families — may not realize they can file complaints with the agency or contact the ombudsman’s office to help.
Spruill’s legislation seeks to address this knowledge gap by requiring facilities to file copies of discharge notices with both offices. It also establishes a clear process for facilities, including procedures for emergency discharges and other situations where it is permissible to discharge a resident. These can include non-payment (provided a resident is given at least 30 days notice and the opportunity to settle outstanding bills) and the development of medical conditions requiring a higher level of care.
“Assisted living operators want to know what the rules of the road are so they can comply,” said Scott Johnson, lobbyist for the Virginia Health Care Association-Virginia Center for Assisted Living, one of the largest groups in the industry. state’s long-term care industry. . The association worked on the legislation with lawyers and legislators, including Del. Patrick Hope, D-Arlington, who carried the House version of the bill.
The Senate legislation passed through the committee process and the full chamber almost unanimously with a final vote of 39 to 1 (only Sen. Frank Ruff, R-Mecklenburg, voted no). But his future in the Chamber is still uncertain. Earlier this month, a House finance panel killed an almost identical Hope bill in a 5-3 vote to the party line, although the legislation received nearly unanimous support from a previous committee.
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